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Nicholson rebuffs CBA call for legal aid funding review

Federal Justice Minister Rob Nicholson defended his government’s approach to criminal legal aid funding at his annual Canadian Bar Association grilling while rebuffing calls from the organization for a review of federal funding.

At the CBA’s annual conference, Nicholson told the crowd of lawyers gathered at the Vancouver Convention Centre on Aug. 13 that the Conservative government has boosted federal funding for criminal legal aid to $111 million from $81 million during its time in power.

“There’s a total commitment of $560 million to the legal aid system,” he said.

“It’s a difficult time for all levels of government. We’ve maintained our funding levels even in this time of restraint.”

Earlier at the conference, the CBA’s council passed a resolution urging the government to “address the crisis in legal aid funding as a systemic issue that jeopardizes the efficiency and effectiveness of the entire justice system.”

The resolution also demanded a “comprehensive review” of federal funding for criminal legal aid.

On Aug. 11, resolution sponsor Dan MacRury, chairman of the CBA’s national criminal justice section, told the council that after taking inflation into account, federal funding increases were essentially flat.

He noted as well that the recently enacted omnibus crime bill would soon cause a spike in demand for legal aid services.

“Clearly, we have a situation where there will be more people on remand requiring duty counsel and basically will strain provincial legal aid plans in such a way that it will cut into the poorly funded civil system that we have at this time,” MacRury said.

“It’s clear that for the system to work, we need enhanced funding to the criminal legal aid to ensure fundamental justice in our country.”

The CBA’s attention now turns to Saskatoon, which will host next year’s annual gathering of the Canadian legal world. Organizers will be hoping for a more profitable affair after the CBA’s treasurer revealed they expect to take a much bigger loss than expected on this year’s conference.

“We’re currently projecting a $100,000 loss,” said Annette Horst, a lawyer from The Pas, Man., during the council.

“When we originally programmed it out in the spring and registration opened, everything was looking very well. A lot of people were registering and people were very excited that we were going back to Vancouver.” Unfortunately, the momentum didn’t continue, she said.

Horst also warned the council to expect the CBA’s revenue to take a hit in the next couple of years as its new membership fee policy takes effect.

An effort two years in the making, the fee review represented the first time the CBA had looked at its pricing structure since 1996. As of 2013, the new policy sets the fee for regular and judicial members at $540 and will rise according to the consumer price index. Lawyers in their first three years of call get a 60-per-cent discount, while law school members pay a $20 fee.

The new pricing structure also allows larger firms to get discounts by buying memberships in bulk. Firms of more than 100 lawyers get a 15-per-cent discount off the base fee when 95 per cent of their lawyers register as members. For those with less than 95-per-cent registration, a five-per-cent discount is available as long as they pay a $200 advocacy fee for each non-member lawyer.

Mid-size firms with 50 to 99 lawyers can get a 10-per-cent discount on base fees when they register 95 per cent of their lawyers as members.

“It does have a financial impact, but we are in a very strong financial position to enable us to make these changes at this particular time,” said Horst.

The finance committee is of the view that the CBA “will not be long term negatively impacted,” she added.

Gail Wartman of Moose Jaw, Sask., chairwoman of the CBA’s membership committee, told the council the existing fee policy was “not meeting the needs of members or potential members.” Since 2008, she said the organization has maintained a churn rate of about 10 per cent, a number the new policy is expected to significantly cut.

Wartman said the discounts offered to large firms were necessary given that 25 per cent of CBA members work at them and they account for 33 per cent of the CBA’s total revenue.

“Large law firms have told us that they are reconsidering the policy of paying membership for every member of the firm,” said Wartman. “Just as their clients asked the law firms for help and consideration during recessionary times, the association was being asked how we can help those firms.”

Lee Akazaki, a former president of the Ontario Bar Association, said CBA membership at some of the largest Bay Street firms had already begun to slip. He was on the fee review committee and said some firms with membership rates historically exceeding 90 per cent had fallen to about 50 per cent.

“Multiply those hundreds of members by hundreds of dollars for each, and we’re talking about devastation,” he said. “If that were to continue, the CBA as we now know it, that provides conferences such as this, that provided CPD to rural communities and provides CPD to remote communities, will cease to exist.”

Shelley Timms, a Toronto sole practitioner and former large-firm lawyer, said she would support the resolution but sounded reluctant.

“The problem I see sometimes is it feels as though there is a lot of emphasis on the large firms,” she said, adding that membership can be expensive for small-firm lawyers after paying branch and section fees on top of the base price.

“We’re looking at 33 per cent of membership is large firm, but 67 per cent is not. . . . We will now have to convince those smaller-firm people as to why their dues proportionally are higher. That’s the challenge that’s going to face us."

As a small firm, rural CBA member, who is active in CBA and with our Law Society, I must concur with the concerns raised about the clout of the large lawfirms, not only in Canada, but internationally.

More and more it appears that large firms dominate the agendas of the CBA and of our Law Societies.

We have seen the pressure of large firms water down conflict of interest rules to serve their own financial interests, we have seen pressure to adopt United Kingdom and Australian governance processes to allow for large scale corporately owned legal practices - further converting the practice of law from a "profession" to little more than a market commodity.

One wonders about the wisdom of following the moral and financial lead of the sort of minds which brought us the grief of Lehman Brothers and Bear Stearns.

I have also followed up the misfortunes of the street people. The homeless face many odds without legal help and commit suicide in the streets of Toronto. From malnutrition to disease, mental illness, exposure to all forms of violence, police beatings and Pro Bono Immorality. If young boy or girl living on the street risks are even greater, including substance abuse and routine sexual violence. 300 homeless girls are pregnanted in Toronto annually.Even truck loads of Legal Aid money in not sufficient and Best Laws/Charter Rights are useless if not implemented.What is needed most is compassion at the Societal level for vulnerable people, respect for their constitutional rights and the realization that these citizens have inviolable rights, rights that Law Society denied them in a brutal fashion.There has been a lack of intent and capacity at the Law Society to help me to help street people free.We are only bequeathing misery to the next generation.

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